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William M. Hodgdon v. Commonwealth of Pennsylvania

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


March 30, 2011

WILLIAM M. HODGDON
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING,
APPELLANT

The opinion of the court was delivered by: James R. Kelley, Senior Judge

Submitted: February 25, 2011

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY SENIOR JUDGE KELLEY

The Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the April 28, 2010, order of the Court of Common Pleas of Allegheny County (trial court) ordering that William H. Hodgdon's "record with DOT and/or the Pennsylvania State Police and/or any other agencies be expunged forthwith."*fn1 We reverse.

Hodgdon filed a Petition for Expungement of PennDOT Records (Petition) with the trial court seeking an order requiring DOT to expunge its records of his acceptance into the Accelerated Rehabilitation Disposition (ARD) program on January 3, 2003. DOT opposed the Petition and a hearing ensued before the trial court. Counsel for DOT and Hodgdon did not present any evidence. Each party presented oral argument in support of their respective positions and later filed briefs with the trial court. The following background is taken from the trial court's opinion.

Hodgdon was accepted into the ARD program on January 3, 2003, for a violation of former Section 3731 of the Vehicle Code, 75 Pa.C.S. §3731, driving under the influence, on June 7, 2002.*fn2 Hodgdon completed the ARD program sometime after February 1, 2004.

At the time of Hodgdon's acceptance into the ARD program, Section 1534(b) of the Vehicle Code, 75 Pa.C.S. §1534(b), provided that DOT had the authority to maintain the records of a licensee's acceptance of ARD for a DUI offense for seven years, following the licensee's admission into the ARD program.*fn3 The Vehicle Code was amended, effective February 1, 2004, and Section 1534(b) now provides that DOT is authorized to maintain a record of a licensee's acceptance into ARD for a DUI offense for ten years, after the licensee has been admitted into the ARD program.*fn4

The sole issue before the trial court was whether the former version of Section 1534(b) of the Vehicle Code, in effect at the time of Hodgdon's acceptance into the ARD program in 2003, or the current version of Section 1534(b), in effect when he completed the ARD program after February 1, 2004, controls the time for expungment by DOT of his record. Upon review, the trial court determined that the prior version of Section 1534(b) controlled and that Hodgdon was entitled to have his record expunged by DOT after seven years. The trial court based its decision on its conclusion that Hodgdon had a reasonable expectation that his record would be expunged in seven years, as provided by the Vehicle Code in effect when he signed the document prepared by the Office of District Attorney of Allegheny County, entitled "County of Allegheny ARD Procedures and

Conditions", at the time he entered the ARD program. That document included language that when Hodgdon completed the ARD program, the District Attorney's office would inform the court and his arrest record would be expunged. The trial court reasoned further that in accepting the ARD program, Hodgdon waived his right to offer proof of his innocence and to a speedy trial and that he may waive these rights in order to have his record expunged as promised by the District Attorney's office.

In further support of its decision, the trial court relied on our Superior Court's opinion in Commonwealth v. M.M.M., 779 A.2d 1158 (Pa. Super. 2001), petition for allowance of appeal denied, 568 Pa. 629, 793 A.2d 906 (2002), wherein the Superior Court interpreted the language of the prior version of Section 1534(b) and held that the court of common pleas had the authority to enter an order requiring DOT to expunge a defendant's record after seven years.*fn5 Specifically, the Superior Court stated:

Our resolution of this issue is based not only on an analysis of the complex web of rules set out in the Motor Vehicle Code. Rather, it is based on the reasonable expectations engendered by the ARD program itself. ARD carries with it the reward of expungement upon successful completion of the program. Pa. R. Crim. P. 186. The principal benefit accorded the defendant is elimination of his or her record. Only where the Commonwealth presents compelling reasons for the retention of a record is the court permitted to deny expungement.

M.M.M., 779 A.2d at 1166.

Therefore, the trial court concluded that: [t]o retroactively apply the amended version of [Section 1534(b)] and extend the length of time in which DOT may maintain [Hodgdon's] records results in unfair surprise to [Hodgdon]. Pennsylvania appellate courts have recognized the importance of protecting the

Defendant's reasonable expectations of the Commonwealth's promised benefit upon completion of the ARD program.

Trial Court Op. at 5. Accordingly, the trial court granted Hodgdon's Petition. This appeal by DOT followed.*fn6

As correctly pointed out by DOT, this case involves a question of statutory interpretation. It is well-settled that there is a presumption against retroactive application of statutes affecting substantive rights. Nicholson v. Combs, 550 Pa. 23, 703 A.2d 407 (1997). Section 1926 of the Statutory Construction Act of 1972, 1 Pa.C.S. §1926, supports this presumption. Id. Section 1926 provides that "[n]o statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly." 1 Pa.C.S. §1926.

There is no dispute that prior to February 1, 2004, the effective date of Act 24, Section 1534(b) of the Vehicle Code provided:

(b) EXCEPTION.--If a person is arrested for any offense enumerated in section 3731 (relating to driving under influence of alcohol or controlled substance) and is offered and accepts accelerated rehabilitative disposition under general rules, the court shall promptly notify the department. The department shall maintain a record of the acceptance of accelerated rehabilitative disposition for a period of seven years from the date of notification. This record shall not be expunged by order of court.

75 Pa.C.S. §1534(b) (2002). There is also no dispute that due to the enactment of Act 24 by the General Assembly, Section 1534(b) of the Vehicle Code currently provides:

(b) EXCEPTION.-- If a person is arrested for any offense enumerated in section 3802 (relating to driving under influence of alcohol or controlled substance) and is offered and accepts Accelerated Rehabilitative Disposition under general rules, the court shall promptly notify the department. The department shall maintain a record of the acceptance of Accelerated Rehabilitative Disposition for a period of ten years from the date of notification. This record shall not be expunged by order of court or prior to the expiration of the ten-year period.

75 Pa.C.S. §1534(b).

In support of its contention that pursuant to the current version of Section 1534(b), Hodgdon is not entitled to have his driving record expunged for a period of ten years, DOT argues that the General Assembly included specific language in Act 24, which amended Section 1534(b) of the Vehicle Code, so that all post-amendment expungements would occur ten years after the acceptance of ARD. DOT directs this Court's attention to Section 21 of Act 24 which states, in pertinent part, as follows:

Section 21. The following shall apply:

(5) The following apply to offenses committed before February 1, 2004:

(i) Except as set forth in subparagraph (ii) or (iii), the act shall not affect an offense committed before February 1, 2004, or any criminal, civil and administrative penalty assessed as a result of that offense.

(ii) Subparagraph (i) does not apply if a provision added or amended by this act specifies application to an offense committed before February 1, 2004, or to any criminal, civil or administrative penalty assessed as a result of that offense.

(iii) Subparagraph (i) does not apply to the following provisions:

(C) The amendment of 75 Pa.C.S. § 1534(b).

Section 21(5) of the Act of September 30, 2003, P.L. 120, 75 Pa.C.S. §1534 (note) (2006) (emphasis added).

Accordingly, pursuant to Section 21(5) of Act 24, the General

Assembly expressly mandated that the 2003 amended version of Section 1534(b) prohibiting the expungement of a driving record before the expiration of the ten year period from the date of acceptance into an ARD program applies to an offense committed before February 1, 2004, or any criminal, civil and administrative penalty assessed as a result of that offense. Moreover, it is clear based on other provisions of Act 24, that the General Assembly expressly applied the 2003 amendment to Section 1534(b) to offenses committed before February 1, 2004, as part of the entire legislative scheme to address repeat offenders.

For example, Section 16 of Act 24 added Chapter 38 to the Vehicle Code, which governs driving after imbibing alcohol or utilizing drugs. Section 3806(b) of the Vehicle Code, "Repeat offenses within ten years," provides that the calculation of prior offenses for the purposes of, inter alia, penalties "shall include any conviction, , acceptance of Accelerated Rehabilitative Disposition . . . within the ten years before the present violation occurred for . . . an offense under former Section 3731. . . " 75 Pa.C.S. §3806(b). Thus, if an ARD-DUI offender committed an offense prior to February 1, 2004, and his or her driving record was permitted to be expunged after only seven years, that offender would escape the enhanced penalties applicable to repeat offenders mandated by the General Assembly when it enacted Act 24.

We point out that the General Assembly's application of Section 1534(b) to offenses committed before February 1, 2004, does not take away or impair any vested rights acquired by Hodgdon. See Alexander v. Department of Transportation, Bureau of Driver Licensing, 583 Pa. 592, 880 A.2d 552 (Pa. Cmwlth. 2005). The amendment to Section 1534(b) merely changes the length of time during which an ARD-DUI cannot be expunged from seven to ten years. See Nicholson, 550 Pa. at 32, 703 A.2d at 411 (retroactive application of laws that only vary remedies is permitted). Hodgdon still has the right to have his driving record expunged in accordance with Section 1534(b) of the Vehicle Code.

Therefore, the trial court erred in granting Hodgdon's Petition prior to the expiration of the ten year period from the date of his January 3, 2003, acceptance into the ARD program in Allegheny County.*fn7 Thus, DOT is correct that it is prohibited by the provisions of Section 1534(b) of the Vehicle Code from expunging Hodgdon's driving record prior to January 3, 2013, at the earliest.

Accordingly, the trial court's order is reversed.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William M. Hodgdon : v. Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, : Appellant :

No. 991 C.D. 2010

ORDER

AND NOW, this 30th day of March, 2011, the order of the Court of Common Pleas of Allegheny County entered in the above-captioned matter is reversed.

JAMES R. KELLEY, Senior Judge


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